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The Session Week 4: A speech, a crowded hearing and the cost of defending laws

Gov. Greg Gianforte delivers a State of the State Address that focuses on economic growth, but lawmakers are turning their attention to social issues.

Host Nadya Faulx and reporters Shaylee Ragar, Mara Silvers, and Austin Amestoy discuss the governor’s speech, debate over transgender rights and abortion, and why the state is asking for more money to defend laws in court.

Nadya Faulx: Governor Greg Gianforte delivers a state of the state address heavy on economic policy. But lawmakers are turning their attention to social issues. This is the session, a look at the policy and politics inside the Montana state house. I'm your host this week, Nadya Faulx with Yellowstone Public Radio.

Shaylee Ragar: I'm Shaylee Ragar with Montana Public Radio.

Mara Silvers: I'm Mara Silvers with Montana Free Press.

Austin Amestoy: And I'm Austin Amestoy with Montana Public Radio.

Nadya Faulx: We'll get to some of those contentious social issues in a moment. But first, Governor Gianforte delivered his second State of the State address last week. And for the most part, it was pretty rosy.

Gov. Greg Gianforte: The state of our state is strong and it is much stronger than it was two years ago.

Nadya Faulx: Shaylee, you watched the address. What kind of tone did the Governor try to set for the rest of the legislative session?

Shaylee Ragar: The Governor really stuck to a script that we've been hearing him hammer for the past couple of months, which is that he wants to continue to focus on the economy, cutting taxes and government regulation. He touted job growth and a decline in unemployment during his State of the State address, and he asked lawmakers to send specific bills to his desk that cut taxes. He did talk about some social issues like parental rights and education and abortion. But he kept those statements pretty vague. MSU political science Professor Jessi Bennion analyzed his speech for MontanaPBS, and here's what she had to say about it.

Professor Jessi Bennion: I don't know the right way to say this, but it was really non Trumpy. It was a very traditional Republican talking points that could have been given 20 years ago.

Nadya Faulx: So how might Gianforte’'s words translate to policymaking?

Shaylee Ragar: We're still pretty early in the process, and it's hard to predict exactly how this will play out. Republican lawmakers have introduced and are carrying Gianforte's proposed economic policies, although they have started tinkering with them. So Gianforte might not get all that he's asking for. Lawmakers focused a lot on social issues last session in 2021. They passed several bills to restrict access to abortion and the rights of transgender Montanans. And during the 2021 State of the State address, the Governor pointed out specific anti-abortion bills he wanted lawmakers to pass. But we didn't hear that from Gianforte this time. He did note that the state's new anti-abortion laws are tied up in court, and we don't have a final decision on those yet.

Gov. Greg Gianforte: But our commitment to doing what's right for unborn babies will never waiver.

Shaylee Ragar: But even though the Governor was more vague than he was in 2021, these social issues are still a priority for Republican legislators. So, for example, Senator Keith Regier from Kalispell brought a bill that aims to remove protection for abortion for the state's right to privacy. And Senator John Fuller, also from Kalispell, brought a bill to restrict health care for transgender youth. And whether he talks about it or not, Governor Gianforte has supported similar types of legislation in the past.

Nadya Faulx: Right. And to talk more about that, I want to bring in Mara. You have your eye on both those bills. And on Friday, you tuned into the first hearing for the bill that would effectively ban gender affirming care for minors. What can you tell us about the discussion in the legislature?

Mara Silvers: Right. So Senate Bill 99 is similar to the two bills that Senator Fuller brought in 2021, both of which failed to pass the legislature. This year, he's trying something a little bit different. Senate Bill 99 would ban gender affirming medical care and surgery for trans minors, and it would also restrict the use of public funds and resources for recommending, providing or promoting medical affirmation, surgical affirmation, and in some cases, social affirmation like clothing, hairstyles, names and pronouns that trans minors want to choose to affirm their gender identity. Last session, like this session, the bills have received a lot of opposition from trans Montanans themselves, parents of trans kids and the medical industry that say that this is an effort to infringe on the private relationship between a patient and their provider. And we heard a lot of that in the testimony on Friday
Nadya Faulx: Yeah. How did that hearing go?

Mara Silvers: It was definitely emotional. It was long. It was more than 4 hours long once proponents and opponents got to have their say. Senator Fuller was joined by about 45 proponents of the bill, many of whom were from out of state, either adults who said that they personally regretted the gender affirming care they received as adults and as well as representatives of national groups like the Family Research Council and The Heritage Foundation, which just reflects that this is a national issue, an issue that we're seeing debated in other states as well. There were also some Montana parents who talked about their fears about social pressure on kids to pursue medical procedures that they might not be able to fully comprehend or appreciate as minors. And Senator Fuller reiterated many of those same concerns in his comments to lawmakers.

Sen. John Fuller: Health professionals take an oath to do no harm and altering the physical appearance of a child without their majority consent is unconscionable.

Mara Silvers: There ended up being twice as many opponents who spoke about Senate Bill 99. Many of them were transgender, nonbinary and two spirit Montanans who really emphasized the huge benefit that medical and social affirmation has brought to their lives. Some of those were adolescents, some of them were adults. We also heard from quite a few parents who said that this type of care was. Crucial for the mental wellness and the thriving of their kids. One of the people who spoke about the importance of that general affirmation was Keegan Medrano, who's a lobbyist for the ACLU of Montana.

Keegan Medrano: We do not consent. We reject this effort to control our bodily autonomy. We reject this effort to extinguish our self-determination. There is nothing better in this world than being trans. We live an illuminated existence. Our love knows no bounds. Our laughter knows no shame. Our joy is endless. And our bodies are everything.

Nadya Faulx: Mara, what do we know about the next steps with the bill?

Mara Silvers: So Senator Keith Regier is the chairman of Senate Judiciary, and he said that the committee wasn't going to take action on Friday, but that they would likely take a vote on the bill this week. If they do approve it, it'll go to the Senate floor where it'll be considered by the full body of lawmakers. And the Senate floor is also where lawmakers recently considered Senator Regier own bill about abortion that she previously mentioned. It would add a line of interpretation to state code, saying that the constitutional right to privacy in Montana does not include the right to an abortion. That bill had passed out of committee on party lines. But interestingly, when it got to the floor, there was some Republican defection. There were six Republican lawmakers who joined Democrats in voting against that bill, Senate Bill 154. And some of those lawmakers in statements on the floor and after the vote just said that they felt like the bill went too far. It was an infringement on privacy and a hot button social issue that they didn't want to be debating when they had limited time at the legislature to deal with important issues like taxes and the economy and other things that they might have more shared values over. And one of them, Senator Welborn from Dillon, actually mentioned that he knew that it was likely going to be challenged in court, and that was not something he felt like he could get behind. Eventually, Senate Bill 154 did pass the full Senate and it will go on to the House for consideration.

Nadya Faulx: Yeah, there are still quite a few laws from the last legislative session that are still held up in court. Austin, you've been tracking a budget request by Governor Gianforte for more money for future legal challenges. What are you looking at this week?

Austin Amestoy: Yeah, that's right, Nadya. A budget subcommittee in the House is scheduled to debate budget changes for the Department of Justice starting this week. The DOJ is typically the agency in charge of defending laws passed by the legislature when they're challenged in court. The governor's asking here for a little more than two and a half million dollars in additional funding for the Legal Services Division within the DOJ over the next two years. 2 million of those dollars are earmarked specifically for costs associated with defending state laws in court, like attorney fees. And about $700,000 is to hire three new civil attorneys who will focus on defending those state laws. And it's important to note here, this really is a new request. Budgets from the last three years don't show this kind of increase to the Department of Justice's litigation fund.

Nadya Faulx: So it sounds like Gianforte is anticipating the state will have to defend more laws this year. Do we have any idea why this request is coming now?

Austin Amestoy: Yeah, that's pretty interesting. When I asked that to folks at the Department of Justice, they redirected me to the Governor's budget and the Governor's budget director, Ryan Osmundson, and told me the DOJ asked for the funds. So it ended up being a bit of a circle. But the line item in the budget request does say constitutional challenges to state law is, quote, increased significantly in 2021. Now that's looking back and not ahead, but I think it's pretty reasonable to say the Governor and the DOJ are expecting a comparable number of constitutional challenges to laws passed by this legislature.

Montana politics, elections and legislative news

Nadya Faulx: And lawmakers will have to decide whether or not to approve more funding for state litigation. So what are they saying at this point?

Austin Amestoy: Well, it's still early, but I've already heard a split between Republicans and Democrats on the topic. Democratic leaders told me they're against the idea and Republican Senate leadership is for it. And the reasons go back to this disagreement over suits brought against state laws in general. Democratic leadership told me lawmakers should heed warnings from attorneys who tell them a bill is potentially unconstitutional. Here's Senate Minority Leader Pat Flowers of Belgrade.

Sen. Pat Flowers: We think these bills that are trying to take away those freedoms and rights are wrong. And we should pay attention to our own attorneys and not waste time and money and effort.

Austin Amestoy: But Republicans say it's good for the state to be financially prepared to defend its laws, and they disagree that lawsuits are inherently bad and wasteful. This is Senate Majority Leader Steve Fitzpatrick of Great Falls.

Sen. Steve Fitzpatrick: Do I like lawsuits? Do I want to have the taxpayer spend a lot of money on lawsuits? No, but they are a part of our the system of checks and balances. We pass laws and then people get to weigh in and decide whether they think it meets our constitutional standards.

Nadya Faulx: Any idea when we'll see decisions made on this funding request?

Austin Amestoy: Well, we don't know for sure, but a budget subcommittee with lawmakers from the House and the Senate are set to hear from DOJ officials on their budget asks for the next biennium, starting Wednesday this week. And that group is scheduled to finalize its budget recommendations sometime during the second week of February. But that won't be the end of the line. Of course, those recommendations will next go before the House Appropriations Committee, which will have an opportunity to tool with them and then on to the full House of Representatives. And the cycle will continue after that on the Senate side. The budgeting process is definitely a marathon, not a sprint.

Nadya Faulx: That's a good point, Austin. We still have a couple of months to go. Well, thanks for breaking down your reporting on that. And thanks to Mara and Shaylee for joining us this week.

Shaylee Ragar: No problem.

Mara Silvers: Thank you.

This has been The Session, a preview of the policy and politics inside the Montana State House. The Session is produced by Montana Free Press, Montana Public Radio and Yellowstone Public Radio. Join us next week for a new episode or subscribe wherever you get your podcasts.

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